“Scars remind us where we’ve been, they don’t have to dictate where we are going”
By the time most separated couples get to the stage where a separation agreement has been drafted, many months, if not years, have passed since the date they actually separated. Some are still living in the matrimonial home together and some have moved on. Issues have been hashed and rehashed but you have finally come to terms with the “substantive” issues: custody, support and/or division of property.
Your lawyers then draft a separation agreement that includes the terms agreed upon. Easy, right? Well, it is certainly a weight off your shoulders that you agreed on the most significant issues but a deal can easily fall apart over what I refer to as the “minutia”.
There is a very delicate balance between small meaningful things and meaningless small things. For instance, depending on the history of events during the negotiation period, I occasionally (rarely) understand the need to limit the number of calls to children when they are with the other parent; however, when you start placing a specific number on the amount or length of calls, you have some serious issues that are far beyond the legal arena.
Here is my lyrical advice for how to get through stage 2: the Separation Agreement.
1. You Can’t Always Get What You Want
The word “settle” is in the most significant part of the word settlement; a derivative of the word “compromise”. Compromise is the most important part of finalizing any Separation Agreement. Finding the balance between what you need and what you want may require some assistance from a third party other than lawyers. I would suggest you ask the DivorceAngels to suggest the appropriate third party.
2. Control Your World
I am not sure how to say this in a politically correct way but since the message is important, pardon my choice of words. I am directing this at the parent who believes there children cannot survive even a weekend without their guidance and direction – think this through very carefully. For some reason, I am absolutely certain that there was at least a day or two during your marriage when you left your spouse alone, yes, alone, with your children. And I am even more certain that when you returned, they were still alive, perhaps even happy. Nothing has really changed about this person that you left your children with.
I am not suggesting for one minute that there are not times that your concerns are legitimate. There are cases where ex-spouses regularly make irrational decisions regarding activities with the children. Taking your young children cliff diving every weekend clearly raises serious safety issues. In a case like this, conduct in general needs to be addressed in a separation agreement. However, if this is not your norm, there is no need to add clauses that limit or restrict what your ex-spouse can do with the children.
3. Celebrate Good Times
In keeping with my advice above and having gone through this process many years ago, there is a silver lining to not being with your children every other weekend. Take some time for yourself. Everyone needs that. If you have forgotten how to do that, again, refer back to the DivorceAngels for some guidance.
4. Between The Lines
Lawyers have a wonderful way with words. If you do not understand the contents of or any part of the agreement, do not be afraid to speak up. It is possible that it is not totally clear or, is perfectly clear but capable of two meanings. The only recommendation I have here is that you do so in a conciliatory way not a combative one. There are many ways to ask a question. At this juncture it should start with, “Can I just have clarification on ….”
5. We Don’t Want to Fight No More
I often refer to a separation agreement as the Magna Carta. The purpose of having one is to make sure that you can resolve any future issues without returning to your lawyers or the litigation process. While I again encourage both parties not to “sweat the small stuff”, ensure the terms include details about major holidays, birthdays, special occasions, amounts of support, amount or percentage of the children’s special expenses, etc. This would include a specific time and date for change over. It would also include the exact date every year that the child support will increase based on the payor’s annual income.
You can always agree to be flexible but in case you are unable to, at least you will have an agreement that clearly sets out the ground rules.
Of course, there will be times when you need to revise or review the terms and you cannot agree. This is why you need a solid dispute resolution clause, again, with specific details on how the dispute process will work if needed. This, in the long run, will save a lot of time, aggravation and money.
6. Lets Stay Together – The End
Yes, a very ironic song choice in the separation process but, I just want to remind all divorcing spouses with children, you will be parenting together for a very long time and when that is done, you will be grand-parenting together! It is best to ensure that whatever agreement you enter into, it works for both sides so that you can cohesively yet separately parent your children.
Nancy Deskin LL.B